Michael McCann (Miss. Coll.) and Joseph Rosen (Orpheus Sports and Entertainment) have posted on SSRN their recent piece in the Case Western Law Review entitled: Legality of Age Restrictions in the NBA and the NFL.

Here's the abstract:

This essay examines age eligibility
rules in the National Football League ("NFL") and the National
Basketball Association ("NBA"), offers analysis of related antitrust
and labor law issues, and shares perspective on underlying policies.

As
a matter of background, the NFL and the NBA are the only major sports
organizations that prohibit players from entrance until a prescribed
period after high school graduation. Major League Baseball, the
National Hockey League, NASCAR, professional tennis, professional golf,
and professional boxing have no such rules. Individuals can also
partake in professional acting, theater, music, and other entertainment
professions without satisfying a period after high school graduation.
The same is true of those who enlist in the U.S. armed forces and in
various occupations that require maturity and discipline.

Such an
employment landscape raises inquiry as to why NFL and NBA teams, unlike
so many other employers, would agree to boycott any candidate,
regardless of talent or skill, until a prescribed period after high
school graduation. This inquiry enjoys heightened interest when
considering that NFL and NBA teams are incomparable employers, as
players may not play in other leagues for similar compensation.

As reported by The New York Times, S.D.N.Y. Judge Victor Marrero just issued a temporary injunction barring Northwest flight attendants from striking--hours before the planned strike was to commence. As posted here earlier by Paul and explained in detail by Rick, a bankruptcy judge had earlier refused to enjoin the strike. That decision is being challenged before Judge Marrero. He stated that injunction was only intended to provide him time to review the matter, so stay tuned.

Marty Malin (Chicago-Kent) wrote the worklaw listserv with a request that people consider signing an on-line petition to save the Labor Studies Program at Indiana University.

This blurb explains a little about the situation at Indiana University:

The Division of Labor Studies is a statewide academic unit
with branches on six campuses. Several UALE members are employed in the DLS.
Despite having 3,600 enrolled students across the state in this last year
and bringing in $2,000,000 in income, the Indiana University administration
is moving toward downsizing and phasing out the program.

The claim was filed in June in response to Congressional
changes to mine safety rules following the Sago Mine disaster. US District Judge John D. Bates
[official profile] dismissed
the case [opinion, PDF] because federal law allows the MSHA discretion in
setting safety standards. Bates wrote that "the loss of lives, and the
risks miners presently face, weigh heavily in public discourse and are taken
seriously by this court. But the tragedy of those events, and the need for
greater protection described by plaintiff, cannot substitute for the
requirements of the law."

Clearly, the judge is right that MSHA has the discretion to
set such safety standards. Why MSHA would not undertake these safety
enhancements is beyond me. It might be because of the slow bureaucratic
pace at which the agency moves or because politics (in particular, the coal mine
owner lobby) is having an undue influence. Of course, you could also
argue that the UMW's lawsuit was a political ploy to bring attention to needed
improvements in the coal industry.

Whatever the reasons, here's hoping that such safety enhancing standards are put in place by MSHA and before another Sago Mine disaster happens.

California Governor Arnold Schwarzenegger
says he and lawmakers have reached a deal to increase the minimum wage
to $8 per hour in two steps.

If approved, the legislation would increase the state's minimum wage
from $6.75 to $7.50 on January 1, 2007 and then to $8.00 in January 1,
2008.

Schwarzenegger says he opposed previous minimum-wage proposals because they were indexed to inflation.

I guess I'm still not sure if someone can leave very well on such an hourly salary in such an expensive state like California, but it's a start. I'm also a little disappointed that the Governor didn't agree to tie minimum wage increases to inflation. That seems to be a no-brainer to me and would have avoided future battles over the minimum wage.

Following Title VII's enactment,
group-based employment discrimination actions flourished due to
disparate impact theory and the class action device. Courts recognized
that subordination which defined a group's social identity was also
sufficient to legally bind members together, even when relief had to be
issued individually. Interwoven through these cases was a notion of
panethnicity that united inherently unrelated groups into a common
identity, for example, Asian Americans.

Stringent judicial
interpretation subsequently eroded both legal frameworks and it has
become increasingly difficult to assert collective employment actions,
even against discriminatory practices affecting an entire group. This
deconstruction has immensely disadvantaged persons with disabilities.
Under the Americans with Disabilities Act ("ADA"), individual employee
claims to accommodate specific impairments, such as whether to install
ramps or replace computer screens, have all but eclipsed a coherent
theory of disability-based disparate impact law, and the class action
device has been virtually non-existent in disability discrimination
employment cases. The absence of collective action has been especially
harmful because the realm of the workplace is precisely where
group-based remedies are needed most. Specifically, a crucial but
overlooked issue in disability integration is the harder-to-reach
embedded norms that require job and policy modifications.

The Article
argues that pandisability theory serves as an analogue to earlier
notions of panethnicity and provides an equally compelling heuristic
for determining class identity. It shows that pandisability undergirds
ADA public service and public accommodation class actions where
individualized remedy assessments have been accepted as part of
group-based challenges to social exclusion. The Article also
demonstrates that this broader vision of collective action is
consistent with the history underlying the class action device. Taking
advantage of the relatively blank slate of writing on group-based
disability discrimination, it offers an intrepid vision of the ADA's
potential for transforming workplace environments. In advocating for a
return to an earlier paradigm of collective action in the disability
context, the Article also provides some thoughts for challenging race
and sex-based discrimination.

You can download this important contribution to disability and employment discrimination law at this link.

The Second Circuit Court of Appeals in a 2-1 decision in Reuland v. Hynes, 04-5521 (2nd Cir. Aug. 21, 2006), has found that a Brooklyn assistant district attorney was demoted and forced to resign in violation of the First Amendment because the adverse employment actions taken against him stemmed from his criticisms of his employer during a publicity tour for his new book.

The majority found that the ADA had engaged in speech on a matter of public concern when publicizing his work when he commented to a reporter about the Brooklyn DA's office: "We’ve got more dead bodies per square inch than anywhere else."

Interestingly, writing in dissent, Judge Winters found that the employee deserved no First Amendment protection because he was engaging in mere hyperbole and not truly speaking out on the deficiencies of his employer.

In any event, I think we can all agree that this is not a case of official-capacity speech under Ceballos.

Yup, you read it right. An important case, Murphy v. IRS, 05-5139 (D.C. Cir. Aug. 22, 2006), has come down from the D.C. Circuit Court of Appeals finding that the taxing of emotional distress damages awarded in an employment retaliation case under the Internal Revenue Code is unconstitutional under the 16th Amendment because such legal relief is not "income" under the Amendment.

There has been a truckload of commentary that has come out about this case, including whether because something is not income under the 16th Amendment the Congress nevertheless has power to tax the award under its other enumerated powers. Paul Caron at TaxProf has this very helpful post summarizing all the blogospheric reaction to this important case. Additionally, here is a nice summary of the case itself from Ross' Employment Law Blog.

Over 2000 employees have brought claims against Cintas in 71 actions in 71 different federal district courts. The Judicial Panel on Multidistrict Litigation has transferred those actions to the Northern District of California, where the first action was filed. The Panel found that the actions involved common questions of fact and that they required the interpretation of identical arbitration clauses. The case is In re Cintas Corp. Overtime Pay Arbitration Litigation, No. MDL-1781 (Aug. 18, 2006), 2006 WL 2422689.

Eric Chason (William & Mary) just sent me a reprint on his thoughtful new piece in the Ohio State Law Journal: Deferred Compensation Reform: Taxing the Fruit of the Tree in its Proper Season, 67 Ohio St. L. J. 347 (2006) (here is the SSRN link).

From the abstract:

Executive pensions (or deferred compensation) grabbed
headlines after Enron's collapse and fresh concerns over ever-increasing
executive pay. They also grabbed the attention of Congress, which reformed
executive pensions legislatively in 2004 with § 409A of the Internal Revenue Code. Section 409A merely tightens and clarifies the doctrines that
had already governed executive pensions, leaving the basic economics of
executive pensions unchanged. Executives can still defer taxation on current
compensation until actual payment is made in the future.
Deferral still comes at the same price to the employer, namely the deferral of
its deduction for the compensation expense. Thus, the timing of deduction and
inclusion are matched.

************************************************[T]he primary problem of executive pensions is the
temporal shifting of executive compensation from high-tax years to low-tax
years. This temporal shifting is clearly allowed by current law, in contrast to
personal shifting of compensation income from high-rate taxpayers to low-rate
taxpayers. The policy concerns are largely the same, however, and the tax laws
should limit the temporal shifting as well. The ideal response would be a
system of accrual taxation on executive pensions. The second best
would be taxing the delayed payment at the highest marginal tax rates that
apply to individuals.

Check out this insightful contribution to the area of executive pensions, as this original approach to the law will surely come to the attention of decisionmakers in this ever-changing area of the law.

From a press relase (should be posted soon on this site) from New Jersey Governor John Corzine:

Governor Jon S. Corzine has signed legislation . . . to
force the disclosure of the names of large employers that have inordinate
numbers of workers enrolled in the NJ FamilyCare subsidized health-care
program.

Mounting evidence suggests that some large employers like Wal-Mart and other
big-box retailers are trying to maximize profits at the expense of New Jersey
taxpayers who foot the bill for NJ FamilyCare," said [Reed] Gusciora
(D-Mercer). "It's inconceivable that the failure of these well-heeled
employers to provide health insurance to their workers is costing taxpayers
more than $100 million a year."

The new law (A932) directs
the state Department of Human Services to create an annual report on employers
that have 50 or more employees enrolled in NJ FamilyCare. The reports will
include employer information, the type of insurance offered, the number of
employees and dependents enrolled in FamilyCare, and the annual cost to the
state for covering employees, employee spouses and employee dependents.

*******************************************************************************The measure requires DHS to provide the annual report by February 1 to the
Governor and Legislative Committees. The comprehensive study will not include
the names of FamilyCare enrollees and will be used to evaluate the decline in
employer-provided health insurance statewide.

As far as ERISA preemption, I am going to say this type of
bill which merely requires disclosure, but does not compel these companies to do
anything, is not interfering with the orderly administration and management of
employee benefit plans and therefore, preemption should not be a problem.

Of course, if New Jersey utilized the findings from these disclosures to try to put
additional obligations on these companies to pay for health care, I think then
your in the Maryland realm of things and ERISA preemption may be a real
possibility.

I like the idea of the disclosure law in some ways because bringing to light
the practices of these highly profitable companies and the way they handle
employee health care maybe can shame some of them in doing what's right,
health care-wise, for their employees.

Also
on the list: Gordon Ramsey, head chef on Fox's "Hell's Kitchen";
Michael Scott, manager on NBC's "The Office"; Al Swearengen, the
brothel owner on HBO's "Deadwood"; Dr. Bob Kelso, hospital chief of
staff on NBC's "Scrubs"; Adrian Monk, the obsessive-compulsive
detective on USA Network's "Monk"; and Cosmo Spacely, George Jetson's
boss in the 1960s animated series "The Jetsons."

I used to love The Jetsons, but wasn't there an equally obnoxious competitor boss in that show that George sometimes worked for?

Here's a story from CNN.com about a long-time female religious teacher who was asked to leave by her church because the church no longer believed that women should educate boys:

The minister of a church that dismissed
a female Sunday School teacher after adopting what it called a literal
interpretation of the Bible says a woman can perform any job -- outside
of the church.

The First Baptist Church dismissed Mary
Lambert on August 9 with a letter explaining that the church had
adopted an interpretation that prohibits women from teaching men. She
had taught there for 54 years.

The letter quoted the first
epistle to Timothy: "I do not permit a woman to teach or to have
authority over a man; she must be silent."

OK, so the church has probably the legal right to religiously discriminate against this teacher under Title VII, but perhaps she could make a claim that religious discrimination was really just a pretext for age discrimination (see Mississippi College).

In any event, you would think a church, a place of compassion, would recognize that being this unfair to a 54-year employee is just not right, illegal or not.

The other question I have, since the church wants to follow a literal version of the New Testament, is whether it will allow its female members to even speak in church.

Congratulations to Gulius Getman on the publication of his new novel Strike! Getman's novel tells the story of a strike by paper workers fighting to maintain their community and traditional lifestyle. Here's a description from the publisher's news release:

The strike is provoked by negotiators for Consolidated Paper Company,
following the instructions of their new CEO, George Watts. In an effort
to destroy the union, Watts demands major concessions and refuses to
make reasonable compromises. When the workers predictably go on strike
the company hires strikebreakers to permanently take their jobs. The
union puts up a much stronger battle than the company expects. It wins
the support of a once hostile press, student groups, churches and civil
rights activists. It undertakes a campaign of civil disobedience that
puts Watts on the defensive even at the Harvard Club. Watts,
reluctantly, orders Tom Gilligan (the company's long director of labor
relations) to negotiate a settlement with the union.

But as the parties get close to reaching an agreement a violent
confrontation between strikers and scabs takes place. Edith Kent, a
pregnant replacement worker is killed during the clash. Her death
dispirits the strikers, and turns public opinion against the union. The
strike is lost. Three union leaders are subsequently tried for
conspiracy under the RICO Act. With the strikers' freedom at stake,
Gilligan is called to testify. The effect of his testimony will
determine whether the strikers remain free or not.

Congratulations to Professor Michael J. Goldberg (Widener), who won an LMRDA case before the Third Circuit which he handled pro bono on behalf of four union
laborers. The case arose in Wilmington, and involved a dispute between the men -
reformers in the longshoremen's union - and their national union, the
International Longshoremen's Association. The case is Knight et al. v. International Longshoremen's Association, No. 05-3430 (3d Cir. 8/14/06).

Dennis Nolan (South Carolina) wrote this morning to send me a link to this fascinating article by Malcolm Gladwell in the New Yorker Magazine discussing the connection between increase productivity in the American workforce and the turmoil surrounding employer-provided pensions.

Here's a taste of this lengthy, but highly interesting, article:

America’s private pension system is now in crisis. Over the past few
years, American taxpayers have been put at risk of assuming tens of
billions of dollars of pension liabilities from once profitable
companies. Hundreds of thousands of retired steelworkers and airline
employees have seen health-care benefits that were promised to them by
their employers vanish.

************************************************************************The logic of dependency ratios, of course, works equally powerfully in
reverse. If your economy benefits by having a big bulge of working-age
people, then your economy will have a harder time of it when that bulge
generation retires, and there are relatively few workers to take their
place.

*************************************************************************This demographic logic also applies to companies, since any employer
that offers pensions and benefits to its employees has to deal with the
consequences of its nonworker-to-worker ratio, just as a country does.
An employer that promised, back in the nineteen-fifties, to pay for its
employees’ health care when they were retired didn’t set aside the
money for that while they were working. It just paid the bills as they
came in: money generated by current workers was used to pay for the
costs of taking care of past workers. Pensions worked roughly the same way.

***************************************************************************Technology led to great advances in productivity, so that when the
bulge of workers hired in the middle of the century retired and began
drawing pensions, there was no one replacing them in the workforce. General Motors today makes more cars and trucks than it did in the
early nineteen-sixties, but it does so with about a third of the
employees. In 1962, G.M. had four hundred and sixty-four thousand U.S.
employees and was paying benefits to forty thousand retirees and their
spouses, for a dependency ratio of one pensioner to 11.6 employees.
Last year, it had a hundred and forty-one thousand workers and paid
benefits to four hundred and fifty-three thousand retirees, for a
dependency ratio of 3.2 to 1.

*******************************************************************************But, with respect to the staggering burden of benefit obligations, what
got them in trouble isn’t what they did wrong; it is what they did
right. They got in trouble in the nineteen-nineties because they were
around in the nineteen-fifties—and survived to pay for the retirement
of the workers they hired forty years ago. They got in trouble because
they innovated, and became more efficient in their use of labor.

The take home line from this remarkably perceptive article: "Here, surely, is the absurdity of a system in which individual
employers are responsible for providing their own employee benefits. It
penalizes companies for doing what they ought to do." In other words, by becoming more productive and more innovative and thereby having less employees, it makes it harder for companies to fund their existing pension obligations.

Gladwell's solution:

[I]f you pooled the obligations of every employer in the country, no
company would go bankrupt just because it happened to employ older
people, or it happened to have been around for a while, or it happened
to have made the transformation from open-hearth furnaces and
ingot-making to basic oxygen furnaces and continuous casting. This is
what Walter Reuther and the other union heads understood more than
fifty years ago: that in the free-market system it makes little sense
for the burdens of insurance to be borne by one company. If the risks
of providing for health care and old-age pensions are shared by all of
us, then companies can succeed or fail based on what they do and not on
the number of their retirees.